People v. Concepción

Me. Justice Wole delivered the opinion of the eonrt. The question in this case is whether a capital case is automatically transferred to the Supreme Court of Porto Rico by virtue of the Act of March 9, 1911, which provides as follows: ‘ ‘ Section 1. — That in every case in which a sentence of death has been pronounced by a district eonrt, it shall be the duty of the attorney or attorneys for the defendant to take proper appeal of said case to the Supreme Court of Porto Rico. “Section 2. — That in every such case where the attorney of the defendant has failed, within the time limited by law, to have a proper record prepared for transmission to the Supreme Court, as above provided, the secretary of the district court shall notify the district judge of that fact, and it shall then become the duty of the said judge within thirty days thereafter to prepare and certify in the form most convenient to' him, a statement of the evidence submitted to the jury; and the said district judge is authorized to extend the time within which the secretary shall forward the transcript of record to the Supreme Court in compliance with the provisions of this law- “Section 3. — All laws or parts thereof in conflict herewith are hereby repealed.” It will be noticed that section 1 makes it the duty of the attorney or attorneys to “take proper appeal” to the Supreme Court of Porto Rico. Hence the Legislature regarded it as necessary for an appeal to be taken, and if an appeal is to be taken, any intention on the part of the Legislature automatically to transfer a capital ease to the Supreme Court is negatived. To put it in another way, if the case were [298] automatically transferred by virtue of its being a capital one, there would be no necessity of imposing a duty on the attorney to take an appeal. The second section assumes that an appeal has been taken and the case transferred to the Supreme Court of Porto Bico. By its terms it refers not to the failure of an attorney to take an appeal, but solely to bis failure to bring1 up the record. The section presupposes that jurisdiction of the case has already been acquired by the Supreme Court of Porto Bico by appeal taken by the attorney. When the attorney, then, fails to prepare a proper record, jurisdiction having already been transferred, it becomes the duty of the judge on proper notice to prepare a “statement of the evidence submitted to the jury.” The judge is authorized to extend the time for transmitting the record in order, it is to be presumed-, that the statement of the case to be prepared by the judge may be added to the judgment-roll in accordance with' the provisions of section 356 of the Code of Criminal Procedure. The second section relates solely to the preparation of the statement of the case and its addition to the transcript. It has no bearing on the acquisition by this court of jurisdiction. The words “as above provided” are anomalous, because the duty to appeal does not include the duty to prepare a' record. They are only explained, perhaps, by the usé of the words “proper appeal.” The Legislature, in the first sectionj may have intended the word “proper” to cover the preparation of the l’ecord as well. The duty of the lawyers would be then not only to appeal, but to prepare a record and the words “as above provided” would be explicable. They are mere surplusage otherwise. There are more general considerations. Section 345 of the Code of Criminal Procedure provides that either of the two parties may appeal to the Supreme Court on questions of law alone, as prescribed in the chapter. ■ Section 347 provides that an appeal may be taken by the defendant, (1) from a final judgment of conviction, (2) from [299] an order denying a motion for a new trial, (3) from an order made after judgment affecting the substantial rights of the party. These were all the provisions of law before March 9, 1911, by which a ■ defendant might appeal to the Supreme Court. In the Act of March 9, 1911, three is ont the slightest word making reference to these sections or showing any direct disposition to modify or amend them. Repeals by implication are not favored in the law and every doubt must he- taken against an intention to change the law and the steady practice of years. .‘Everywhere thé will of the party to appeal must be displayed. The primary duty of the attorney is to follow the instructions of his client and, the words of the statute to the •contrary notwithstanding, we do not think an attorney would have the right to appeal against the will of his client. ¡.There is no provision in the law facing the moment when the case would be transferred if it be urged that the case was automatically transferred. Is the case instantly transferred to the Supreme Court on the rendition of judgment or on the failure of the attorney to appeal? When does the time for preparing, the transcript begin to run and why should it he necessary to extend the time as provided by section 2, unless it was intended that the case should follow the rules provided in every other criminal case and require the intervention of .the party or his attorney? In the case at bar the judge prepared a statement and the secretary transmitted the record, hut there was no appeal. Hence, this court never' acquired jurisdiction and we have no authority to consider the merits of the pleading or the trial. The law had no other purpose than to impose upon the 'attorney the duty of taking an appeal in capital cases, as well as to provide that this court, in deciding such appeals, should always he furnished with a statement of the evidence "which was submitted to the consideration of' the jury and which must have been prepared by the attorney, or, upon [300] Ms failure to do so, by the trial judge, thus' avoiding what lias often occurred previously in many cases, that is, that due to said failure in filing such statement of facts we have been compelled to confine our consideration of the case only to the question of whether the information was sufficient or the instructions given by the judge to the jury were correct. The case must be dismissed or filed away for lack of appeal. Dismissed. Chief Justice Hernández and Justice Aldrey concurred. Justices del Toro and Hutchison dissented.